Safety issues remain to be a central concern following the January derailment of an oil-carrying freight train in New Brunswick, New Jersey. As the investigation continues, railroad safety experts are expected to play an integral role in several key areas, including investigations by industry affiliates, insurance companies, and the Canadian and U.S. governments. Safety expert witnesses will be critical for processes associated with the resolution of insurance claims extending from the incident. The role of safety experts in non-dispute related matters can help alleviate general concerns. However, in terms of subsequent improvement and future prevention, the use of safety experts for dispute-related purposes, at least amongst the party opponents to insurance claims, presents a more immediate concern.
When considering the significant amount of damage caused by the fiery wreck, initial inquiries will typically center upon the extent of liability insurance held by an insured, in comparison to the extent of damages. While this initial inquiry is both necessary and important, the critical inquiry involves the manner in which party opponents will support or defend issues of causation and liability. As we have seen with other insurance disputes involving accidents, the role of expert witnesses can have a profound impact on the ultimate outcome of the case. However, because accidents involving train derailments are highly unique, practitioners need to take appropriate measures to ensure that the level of expertise possessed by a particular expert meets the distinctiveness of this accident type.
For example, a railroad safety expert qualified to testify in a liability insurance dispute on matters associated with a derailment, will often have an educational background in engineering, or a related field of science, in addition to specific education, training, or experience on railroad safety issues, such as use, operation, maintenance, repair, industry standards, and/or regulatory compliance. Another consideration for practitioners is that the New Brunswick derailment involves the added component of the transport of dangerous goods. The type of freight being carried can be expected to come into play, securing a railroad safety expert that has the additional expertise in the area of transporting petroleum products is an important consideration.
Aside from ensuring that the level of expertise possessed by a potential expert, practitioners should also consider the timing associated with employing an expert. Although the primary use of a particular expert might be for testimonial purposes, the beneficial value of securing an expert during the initial stages of dispute, can be realized in several ways. For example, both the insured and the insurer will often use safety experts for consulting purposes during pre-suit claims processes, as well as for preparing or responding to pleadings, and asserting or defending preliminary motions. Safety experts can also play a valuable role during the discovery process, whether for formulating document or interrogatory production requests, or for deposition related purposes.
Considering admissibility issues is another valuable aforethought. As demonstrated in several prior cases involving insurance disputes, the exclusion of testimony, on grounds that it is outside the expert’s scope of expertise can have a devastating impact on the party seeking to admit the testimony. For example, while a safety expert may be sufficiently qualified to testify on the railroad industry standards, if the testimony sought to be admitted transgresses into areas beyond an expert’s area of expertise, such as the interpretation of insurance policy provisions, an opponent’s challenge is likely to result in exclusion. Accordingly, if a practitioner can perceive the mere possibility of an expert’s testimony crossing permissible boundaries of scope, anticipatory measures can be taken to avoid exclusion, whether through securing a safety expert with the additional qualifications necessary, or securing a separate expert altogether.
By: Alicia McKnight, J.D.